CRIMINAL CODE. Law no. 59/2007 of 4 September (Twenty third amendment to the Criminal Code, approved by Decree-Law no. 400/82 of 23 September)

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1 CRIMINAL CODE Law no. 59/2007 of 4 September (Twenty third amendment to the Criminal Code, approved by Decree-Law no. 400/82 of 23 September) BOOK I General Part TITLE I Criminal Law SINGLE CHAPTER General Principles Article 1 Principle of legality 1 An act may only be criminally punished if it had been made punishable by a law prior to the act s commission. 2 A security measure may only be applicable to states of dangerousness which requirements are established in a law prior to its fulfilment. 3 It is not possible to resort to analogy to qualify an act as criminal, to define a state of dangerousness or to determine their corresponding punishment or security measure. Article 2 Temporal applicability 1 Punishments and security measures are determined by the law in force at the time of the commission of the act or of the fulfilment of the requirements which they depend upon. 2 The act punishable by the law in force at the time of its commission ceases to be punishable if a new law eliminates it from the number of infringements; in such case, if there has been a conviction, even if it has become final, its execution and criminal effects are extinguished. 3 If a law is intended to be applicable for a specific period of time, an act committed during such period of time continues to be punishable. 4 When the criminal provisions in force at the time of the commission of the punishable act are different from those established in subsequent laws, the regime which NON-OFFICIAL TRANSLATION 1

2 is actually the most favourable to the agent is always applicable; if there has been a conviction, even if it has become final, its execution and criminal effects are extinguished as soon as the portion of the punishment which is already served reaches the maximum limit of the punishment foreseen in the subsequent law. Article 3 Time of the commission of the act An act is deemed to have been committed at the time the agent acted or, in the case of an omission, should have acted, regardless of the time when the typical result has occurred. Article 4 Territorial applicability - General principle Unless provided otherwise in an international treaty or convention, the Portuguese criminal law is applicable to acts committed: a) In Portuguese territory, regardless of the nationality of the agent; or b) On board of Portuguese ships or aircrafts. Article 5 Acts committed outside the Portuguese territory 1 - Unless provided otherwise in an international treaty or convention, the Portuguese criminal law is also applicable to acts committed outside the national territory: a) When constituting the crimes foreseen in articles 221, 262 to 271, 308 to 321 and 325 to 345; b) Against portuguese, by portuguese customarily residents in Portugal at the time of their commission and found therein; c) When constituting the crimes foreseen in articles 159 to 161, 171, 172, 175, 176 and 278 to 280, provided that the agent is found in Portugal and cannot be extradited or handed over as a result of the execution of an European arrest warrant or other instrument of international cooperation which bounds the Portuguese State; d) When constituting the crimes foreseen in articles 144, 163 and 164, when the victim is a minor, provided that the agent is found in Portugal and cannot be extradited or handed over as a result of the execution of an European arrest warrant or other instrument of international cooperation which bounds the Portuguese State; NON-OFFICIAL TRANSLATION 2

3 e) By portuguese, or by foreigners against portuguese, whenever: i) The agents are found in Portugal; ii) Such acts are also punishable by the law of the place where they have been committed, unless the place of the act is not subject to any punitive power; and iii) Such acts constitute a crime permitting extradition and such extradition cannot be granted or it is decided not to hand over the agent in execution of an European arrest warrant or other instrument of international cooperation which bounds the Portuguese State; f) By foreigners found in Portugal and whose extradition has been requested, when constituting crimes permitting extradition and such extradition cannot be granted or it is decided not to hand over the agent in execution of an European arrest warrant or other instrument of international cooperation which bounds the Portuguese State; g) By a legal person or against a legal person having its registered office in the Portuguese territory. 2 The Portuguese criminal law is also applicable to acts committed outside the national territory to which the Portuguese State has, by international treaty or convention, bound itself to decide. Article 6 Restrictions to the applicability of Portuguese law 1 The applicability of Portuguese law to acts committed outside the national territory only takes place when the agent has not been tried in the country where the act has been committed or if he has evaded from the full or partial serving of the conviction. 2 Although the Portuguese Law is applicable under the previous number, the act is tried according to the law of the country where the act has been committed whenever such law is actually more favourable to the agent. The applicable sentence is converted to its corresponding sentence in the Portuguese system, or, in the case of no direct correspondence, to the sentence which the Portuguese law foresees for the act. 3 The regime set out in the previous number is not applicable to the crimes foreseen in paragraphs a) and b) of no. 1 of the previous article. NON-OFFICIAL TRANSLATION 3

4 Article 7 Place of the commission of the act 1 The act is deemed to be committed in the place where the agent has, totally or partially and under any form of participation, acted or, in the case of omission, should have acted as well as in the place where the typical result or the result not comprised in the type of crime has occurred. 2 In case of an attempt, the act is also deemed to be committed in the place where, according to the agent s representation, the result should have occurred. Article 8 Subsidiary applicability of the Criminal Code The provisions of this code are applicable to acts punished by the military criminal law and by the mercantile marine law and by the remainder special legislation, unless a provision states otherwise. Article 9 Special provisions for juveniles Rules established in special legislation are applicable to juveniles over 16 years of age and less than 21 years of age. TITLE II Act CHAPTER I Requirements of punishment Article 10 Commission by action and by omission 1 When a legal type of a crime includes a certain result, the act comprises not only the proper action to produce it as well as the omission of the proper action to avoid it, unless the intention of the law requires otherwise. 2 The commission of a result by omission is only punishable when the person omitting the action is under a legal duty which personally obliges him to avoid such result. 3 In the case foreseen in the previous paragraph, the sentence can be specially mitigated. NON-OFFICIAL TRANSLATION 4

5 Article 11 Responsibility of private individuals and legal persons 1 Except for the following number and in those cases specially foreseen in the law, only private individuals are capable of criminal responsibility. 2 Legal persons and equivalent entities, with the exception of the State, of other public legal persons and of international organisations of public law, are responsible for the crimes foreseen in articles 152-A and 152-B, in articles 159 and 160, in articles 163 to 166, when the victim is a minor, and in articles 168, 169, 171 to 176, 217 to 222, 240, 256, 258, 262 to 283, 285, 299, 335, 348, 353, 363, 367, 368-A and 372 to 374, when committed: a) In its name and in the collective interest by persons who hold in it a leadership position; b) By whoever acts under the authority of the persons referred to in the previous paragraph by virtue of a breach of the surveillance or control duties which are incumbent upon them. 3 For the purposes of criminal law the expression public legal persons comprises: a) Legal persons governed by public law, in which the public corporations are included; b) Concessionaires of public services, regardless of their ownership; c) Further legal persons which perform public power prerogatives. 4 The bodies and representatives of the legal person and whoever has the authority in it to exercise the control of its activity are deemed to hold a leadership position. 5 Civil companies and de facto associations are considered, for criminal responsibility purposes, entities equivalent to legal persons. 6 The responsibility of legal persons and equivalent entities is excluded when the agent acted against express orders or instructions from whom it concerned. 7 - The responsibility of legal persons and equivalent entities does not exclude the individual responsibility of the respective agents nor is dependent on them being responsible. 8 The criminal responsibility of a legal person or of an equivalent entity is not extinguished by a demerger or by a merger, responding for the commission of the crime: a) The legal person or equivalent entity in which the merger has been executed; and b) The legal persons or equivalent entities which have arisen from the demerger. NON-OFFICIAL TRANSLATION 5

6 9 Without prejudice to the right of recourse, the persons holding a leadership position are subsidiary responsible for the payment of fines and compensations for which the legal person or equivalent entity is convicted of, in respect of crimes: a) Committed in the period in which such persons held the position, without their express opposition; b) Committed in a prior moment, when it is of such persons guilt that the property of the legal person or equivalent entity became insufficient for the respective payment; or c) Committed in a prior moment, when the final decision to apply them has been notified during the period in which such persons held the position and the lack of payment is imputable to them. 10 In the case of several persons being responsible under the previous number, their liability is joint and several. 11 If the fines or compensations are applied to an entity without legal personality, they shall be beard by the joint property and, in its absence or insufficiency, jointly and severally, by the property of each of the associates. Article 12 Acting on behalf of another 1 Whoever acts voluntarily as holder of a body of a legal person, company or mere de facto association, or in legal or voluntary representation of another, is punishable, even when the respective type of crime requires: a) Certain personal elements and these are only verified in the represented person; or b) That the agent commits the act in its own interest and the representative acts in the interest of the represented person. 2 The ineffectiveness of the act which establishes the grounds of the representation does not prevent the applicability of the previous number. Article 13 Wilful conduct and negligence Only an act committed with wilful conduct is punishable or, in the cases specially foreseen in the law, with negligence. NON-OFFICIAL TRANSLATION 6

7 Article 14 Wilful conduct 1 Whoever, representing an act which fulfils a type of crime, carries it on with the intention of accomplishing it, acts with wilful conduct. 2 Whoever, representing the accomplishment of an act which fulfils a type of crime as a necessary consequence of his conduct, also acts with wilful conduct. 3 When the accomplishment of an act which fulfils a type of crime is represented as a possible consequence of the conduct, the wilful conduct exists if the agent acts accepting such accomplishment. Article 15 Negligence 1 Whoever, failing to exercise a duty of care to which, under the circumstances, is obliged to and is capable of: a) Represents as possible the accomplishment of an act which fulfils a type of crime but acts without accepting such accomplishment; or b) Does not even represent the possibility of accomplishment of the act; Article 16 Mistake about circumstances of the act 1 The mistake about matters of fact or of law of a type of crime or about prohibitions which knowledge is reasonably required in order for the agent to become aware of the unlawfulness of the act, excludes the wilful conduct. 2 The previous number includes the mistake about a state of things which, if existing, would exclude the unlawfulness of the act or the agent s guilt. 3 Punishment by negligence in the general terms remains unaffected. Article 17 Mistake about unlawfulness 1 Whoever acts without being aware of the unlawfulness of the act, acts without guilt, provided that his mistake is not censurable. 2 - If his mistake is censurable, the agent is punished with the sentence applicable to the respective crime committed with wilful conduct, which can be specially mitigated. Article 18 NON-OFFICIAL TRANSLATION 7

8 Aggravation of sentence due to result When the sentence applicable to an act is heavier by virtue of the production of a result, the aggravation is always subject to the possibility to impute such result to the agent, at least, by negligence. Article 19 Lack of capacity to be criminally liable due to age Minors under sixteen years of age lack of capacity to be criminally liable. Article 20 Lack of capacity to be criminally liable due to mental disorder 1 Whoever, by virtue of a mental disorder, is incapable, at the time of commission of the act, of assessing the unlawfulness of the act or of acting according to such assessment, lacks of capacity to be criminally liable. 2 Whoever, by virtue of a serious mental disorder, not accidental and whose effects cannot be controlled by him, without being thereby censurable, has, at the time of commission of the act, the capacity to assess the unlawfulness of the act or to act according to such sensibly reduced assessment, may be declared without capacity to be criminally liable. 3 The agent s proved incapacity of being influenced by the sentences may constitute a sign of the situation foreseen in the previous number. 4 The capacity to be criminally liable is not excluded when the mental disorder has been caused by the agent with the intention to commit the act. CHAPTER II Forms of crime Article 21 Preparatory acts Preparatory acts are not punishable, unless a provision states otherwise. Article 22 NON-OFFICIAL TRANSLATION 8

9 Attempt 1 An attempt exists when the agent performs acts for the execution of a crime that he has decided to commit, without occurring completion of such crime. 2 Execution acts are: a) Those acts which fulfil a constitutive element of a type of crime; b) Those acts suitable to produce a typical result; or c) Those acts that, according to the common experience and with the exception of unforeseeable circumstances, are of a kind which is expected to be followed by acts of the types referred to in the previous paragraphs. Article 23 Punishment for an attempt 1 - Unless a provision states otherwise, an attempt is punishable only if to the respective completed crime corresponds a sentence higher than three years of imprisonment. 2 An attempt is punishable with the sentence applicable to the completed crime, specially mitigated. 3 An attempt is not punishable when it is clear that the mean used by the agent is improper or the object essential for the completion of the crime does not exist. Article 24 Abandonment 1 An attempt ceases to be punishable when the agent voluntarily abandons the further execution of the crime, or prevents its completion, or, notwithstanding its completion, prevents the verification of the result not comprised in the type of crime. 2 When the completion or the verification of the result are prevented by an act independent from the conduct of the abandoning party, the attempt is not punishable if such party makes earnest efforts to prevent one or another. Article 25 Abandonment in case of participation If several agents participate in the act, the attempt of the agent that voluntarily prevents the completion or the verification of the result is not punishable nor of the agent that makes earnest efforts to prevent one or another, even if the other participants proceed with the execution of the crime or complete the crime. NON-OFFICIAL TRANSLATION 9

10 Article 26 Perpetration Whoever commits the act, by himself or through another, or takes direct part in its execution, in agreement or together with other persons as well as whoever intentionally induces another to commit an act is punishable as perpetrator, provided that there is execution or commencement of execution. Article 27 Accessoryship 1 Whoever, intentionally and by any form, renders material or moral assistance to the commission by another of an act with wilful conduct, is punishable as an accessory. 2 The sentence determined to the perpetrator is applicable to the accessory, specially mitigated. Article 28 Unlawfulness in the participation 1 If the unlawfulness or the level of unlawfulness of the act depend upon certain qualities or special relationships of the agent, in order for the respective sentence to become applicable to all participants, it is sufficient that such qualities or relationships are verified in any of them, except if the intention of the incriminated rule is different. 2 Whenever, by virtue of the rule foreseen in the previous number, results the applicability of a more severe sentence for any of the participants, this may, taking into account the circumstances of the case, be replaced by the sentence which would have been applicable if such rule did not intervene. Article 29 Guilt in the participation Each participant is punished according to his guilt, regardless of the punishment or of the level of guilt of the other participants. Article 30 Concurrence of crimes and continuous crime NON-OFFICIAL TRANSLATION 10

11 1 The number of crimes is determined by the number of types of crimes effectively committed or by the number of times that the same type of crime is fulfilled by the agent s conduct. 2 The multiple accomplishment of the same type of crime or of several types of crime, which basically safeguard the same legal asset, constitutes only one continuous crime, when executed in an essentially homogeneous manner and under the solicitation of a same external situation which considerably reduces the guilt of the agent. 3 The previous paragraph does not comprise the crimes committed against eminent personal assets, unless if concerning the same victim. CHAPTER III Unlawfulness and guilt absolving excuses Article 31 Unlawfulness absolving excuse 1 An act is not punishable when its unlawfulness is excused by the legal system considered as a whole. 2 Namely, the act is not unlawful when committed: a) In Self-defence; b) In the exercise of a right; c) In the compliance of a duty imposed by law or by a legitimate order of the authority; or d) With the consent of the holder of the injured legal interest. Article 32 Self-defence An act committed as a necessary mean to repel a current and unlawful aggression on legally protected interests of the agent or of a third party constitutes self-defence. Article 33 Excessive self-defence 1 If there is an excess in the means employed in the self-defence, the act is unlawful but the sentence may be specially mitigated. 2 The agent is not punished if the excess is due to non-censurable disturbance, fear or fright. NON-OFFICIAL TRANSLATION 11

12 Article 34 Necessity right An act committed as an adequate mean to avert a current danger which threatens legally protected interests of the agent or of a third party is not unlawful, upon occurrence of the following requirements: a) The danger situation has not been voluntarily caused by the agent, unless in the case of protection of a third party s interest; b) The protected interest substantially outweighs the one interfered with; and c) It is reasonable to impose to the injured person the sacrifice of his interest, considering the type or the value of the threatened interest. Article 35 Excused necessity state 1 Whoever, faced with a current danger to life, bodily integrity, honour or to his or a third party s liberty, commits an unlawful act which is adequate to avert such danger, which cannot otherwise be averted, acts without guilt, when it is not reasonable to require from the agent, under such circumstances, a different behaviour. 2 If the danger threatens legal interests different from those referred to in the previous number and if the remaining requirements described therein are verified, the sentence may be specially mitigated or, exceptionally, the agent discharged without punishment. Article 36 Conflict of interests 1 The act committed by a person who, in the event of a conflict in complying with legal duties or legitimate orders of an authority, fulfils a duty or an order of equivalent or higher value than the duty or order sacrificed, is not unlawful. 2 The duty of hierarchical obedience ceases when leading to the commission of a crime. Article 37 Excused undue obedience NON-OFFICIAL TRANSLATION 12

13 The officer who complies with an order without knowing that such order leads to the commissioning of a crime acts without guilt, if it was not evident within the circumstances frame represented by him. Article 38 Consent 1 - Besides the situations specially foreseen in the law, the consent excludes the unlawfulness of the act when referring to freely disposal legal interests and if the act does not offend the morality. 2 The consent may be expressed by any mean which reveals a serious, free and clear will of the holder of the legally protected interest and may be freely revoked until the execution of the act. 3 The consent is only effective if given by someone over 16 years of age and with the necessary judgment to assess its meaning and extension at the time in which the consent is given. 4 If the consent is not known by the agent, the latest is punished with the sentence applicable to an attempt. Article 39 Presumed consent 1 Presumed consent is equivalent to effective consent. 2 There is presumed consent when the situation in which the agent acts reasonably allows supposing that the holder of the legally protected interest would have effectively consented in the act, if he knew the circumstances in which the act is committed. TITLE III Legal consequences of the act CHAPTER I Preliminary provision Article 40 Purposes of sentences and of security measures NON-OFFICIAL TRANSLATION 13

14 1 The applicability of sentences and of security measures aims the protection of legal assets and the agent s reintegration into society. 2 - In no event the sentence may exceed the extent of guilt. 2 The security measure may only be applicable if it is proportional to the seriousness of the act and to the dangerousness of the agent. CHAPTER II Sentences SECTION I Imprisonment and fine Article 41 Length and counting of imprisonment terms 1 The sentence of imprisonment has, as a rule, a minimum length of a month and a maximum length of twenty years. 2 The maximum limit of the sentence of imprisonment is of twenty five years in the cases foreseen in the law. 3 In no event the maximum limit established in the previous number may be exceeded. 4 The counting of the imprisonment terms is made pursuant to the criteria set out in the criminal procedure law and, in its absence, in the civil law. Article 42 Execution of the sentence of imprisonment 1 The execution of the sentence of imprisonment, serving the society s defence and preventing the commission of crimes, must be guided to the social reintegration of the convict, preparing him to lead his life in a socially responsible way, without committing crimes. 2 The execution of the sentence of imprisonment is governed by own legislation, in which are established the rights and duties of convicts. Article 43 Replacement of the sentence of imprisonment NON-OFFICIAL TRANSLATION 14

15 1 The sentence of imprisonment applied for not more than one year is replaced by a fine penalty or by other applicable non-custodial sentence, unless the execution of the imprisonment is required by the need to prevent the commission of future crimes. Article 47 is correspondently applicable. 2 If the fine is not paid, the convict serves the sentence of imprisonment applied in the judgment. Number 3 of article 49 is correspondently applicable. 3 The sentence of imprisonment applied for not more than three years is replaced by a prohibition sentence, for a period from two to five years, of the exercise of the profession, duty or activity, public or private, when the crime has been committed by the defendant in the respective exercise, whenever the court concludes that, by this mean, the punishment purposes are accomplished in an adequate and sufficient manner. 4 In the case foreseen in the previous number, numbers 3 to 5 of article 66 and article 68 are applicable, with the necessary adjustments. 5 The court revokes the prohibition sentence of the exercise of the profession, duty or activity and orders the serving of the sentence of imprisonment determined in the judgment if the agent, upon conviction: a) Breaches the prohibition; b) Commits a crime, for which turns out to be convicted and reveals that the purposes of the prohibition sentence of the exercise of the profession, duty or activity could not, by means of such sentence, be accomplished. 6 Article 57 is correspondently applicable. 7 If, in the cases of no. 5, the convict has to serve a sentence of imprisonment, but has already served prohibition of the exercise of the profession, duty or activity, the court deducts from the time of imprisonment to be served the time of prohibition already served. 8 For the purposes of the previous article, each prison day is equivalent to the number of days of prohibition of the exercise of the profession, duty or activity, which proportionally corresponds to it pursuant to the judgment, being, whenever necessary, rounded down the number of days to be served. Article 44 House arrest regime NON-OFFICIAL TRANSLATION 15

16 1 If the convict consents, the following sentences may be executed in house arrest regime, monitored by remote technical means, whenever the court concludes that this type of serving accomplishes in an adequate and sufficient manner the punishment purposes: a) The sentence of imprisonment for not more than one year; b) The remaining not higher than one year of the effective sentence of imprisonment which exceeds the time of deprivation of liberty to which the defendant has been subject to in detention regime, provisional custody or house arrest. 2 The maximum limit foreseen in the previous number may be raised to two years upon verification, at the date of conviction, of personal or familiar circumstances of the convict which dissuade the deprivation of liberty in a penitentiary institution, namely: a) Pregnancy; b) Age less than 21 years or over 65 years; c) Serious disease or deficiency; d) Existence of a minor in his charge; e) Existence of a relative exclusively at his care. 3 The court revokes the house arrest regime if the convict: a) Infringes, in a gross and continuous manner, the duties resulting from the sentence; or b) Commits a crime for which turns out to be convicted and reveals that the house arrest regime purposes could not, by such mean, be accomplished. 4 The revocation implies the serving of the sentence of imprisonment determined in the judgment, being deducted in full the sentence already served in house arrest regime. Article 45 Imprisonment by free days 1 The sentence of imprisonment applied for not more than one year, which shall not be replaced by other type of sentence, is served in free days whenever the court concludes that, in the case, this type of serving accomplishes in an adequate and sufficient manner the punishment purposes. 2 The imprisonment by free days consists of a deprivation of liberty for periods corresponding to weekends, which cannot exceed 72 periods. 3 Each period has a minimum length of thirty six hours and a maximum length of forty-eight hours, which is equivalent to five days of continuous imprisonment. NON-OFFICIAL TRANSLATION 16

17 4 The public holidays prior to or immediate following a weekend may be used for execution of the imprisonment by free days, without prejudice to the maximum length set out for each period. Article 46 Semi-detention regime 1 - The sentence of imprisonment applied for not more than one year, which shall not be replaced by another type of sentence or served in free days, may, with the convict s consent, be executed in semi-detention regime. 2 The semi-detention regime consists of a deprivation of liberty which allows the convict to pursue his normal professional activity, his vocational training or studies, by virtue of way outs strictly limited to the compliance of his obligations. Article 47 Fine penalty 1 The fine penalty is established in days, pursuant to the criteria set out in no. 1 of article 71, having, as a rule, a minimum limit of 10 days and a maximum limit of Each day of fine corresponds to an amount ranging from 5 to 500, which the court establishes in view of the convict s economic and financial situation and his personal charges. 3 Whenever the economic and financial situation of the convict so justifies, the court may authorise the payment of the fine within a term not exceeding one year, or authorise the payment in instalments, which last instalment may not exceed two subsequent years from the date in which the conviction has become final. 4 Within the limits referred to in the previous number and when subsequent reasons so justifies, the payment terms initially established may be amended. 5 The lack of payment of one of the instalments implies the maturity of all of them. Article 48 Replacement of fine by work 1 Upon convict s request, the court may order that the fine penalty determined is, totally or partially, replaced by days of work in establishments, workshops or works of the State or of other legal persons governed by public law or also of private institutions NON-OFFICIAL TRANSLATION 17

18 of social solidarity, when it concludes that such way of serving, accomplishes in an adequate and sufficient manner the punishment purposes. 2 Numbers 3 and 4 of article 58 and number 1 of article 59 are correspondently applicable. Article 49 Conversion of unpaid fine in subsidiary imprisonment 1 If the fine, which has not been replaced by work, is not voluntarily or compulsorily paid, imprisonment is served as subsidiary penalty for the correspondent time reduced of two thirds, even if the crime was not punishable with imprisonment and for such purposes, the minimum limit of imprisonment days set out in no. 1 of article 41 is not applicable. 2 The convict may, at all times, prevent, totally or partially, the execution of the imprisonment as subsidiary penalty, by paying, in whole or in part, the fine to which he was convicted for. 3 If the convict proves that the reason for the non payment of the fine is not imputable to him, the execution of the imprisonment as subsidiary penalty may be suspended for a period from one to three years, provided that the suspension is subject to the compliance of duties or rules of conduct of non economic or financial contents. If the duties or rules of conduct are not complied with, the imprisonment as subsidiary penalty is executed; if they are complied with the sentence is extinguished. 4 Numbers 1 and 2 are correspondently applicable to the case where the convict does not serve, with guilt, the number of days of work to which, upon his request, the fine was replaced by. If the default is not imputable to him, the previous number is correspondently applicable. Section II Suspension of the execution of the sentence of imprisonment Article 50 Requirements and duration 1 The court suspends the execution of the sentence of imprisonment applied for not more than 5 years if, considering the agent s personality, his life conditions, his previous and subsequent conduct to the crime and the crime circumstances, concludes NON-OFFICIAL TRANSLATION 18

19 that the mere censure of the act and the threat of the imprisonment accomplish in an adequate and sufficient manner the punishment purposes. 2 If the court deems convenient and adequate for the accomplishment of the punishment purposes, it subjects the suspension of the execution of the sentence of imprisonment, in the terms of the following articles, to the compliance of duties or to the observance of rules of conduct or determines that the suspension is accompanied by probation. 3 The duties and the rules of conduct may be imposed together. 4 The convictional sentence always specifies the grounds for suspension and its conditions. 5 The suspension period has the same length as the sentence of imprisonment determined in the judgment but never less than one year, from the time in which the decision has become final. Article 51 Duties 1 - The suspension of the execution of the sentence of imprisonment may be subject to the compliance of duties imposed to the convict and aimed to repair the harm of the crime, namely: a) To pay, within a certain term, in whole or in the part that the court deems to be possible, the compensation due to the injured party or guarantee its payments by means of a suitable surety; b) To give the injured party an adequate moral satisfaction; c) To deliver to institutions, whether public or private, of social solidarity or to the State, a cash contribution or other contribution of equivalent value. 2 The imposed duties may not, under any circumstance, represent to the convict obligations which performance is not reasonable to be requested. 3 The imposed duties may be amended until the term of the suspension period upon the occurrence of subsequent relevant circumstances or which the court has subsequently become aware of them. 4 The court may determine that the social reintegration services support and supervise the convict in the compliance of the duties imposed. NON-OFFICIAL TRANSLATION 19

20 Article 52 Rules of conduct 1 The court may subject the convict to the compliance, for the time of the suspension, of rules of conduct of positive contents, capable of supervision and aimed to promote his reintegration into society, namely: a) To reside in a certain place; b) To attend certain programs or activities; c) To comply with certain obligations. 2 The court may, additionally, subject the convict to the compliance of other rules of conduct, namely: a) Not to perform certain professions; b) Not to attend certain environments or places; c) Not to reside in certain places or regions; d) Not to accompany, accommodate or receive certain persons; e) Not to attend certain associations or participle in certain meetings; f) Not to have in his possession objects capable of facilitating the commission of crimes. 3 The court may also, with the prior consent of the convict, determine his submission to medical treatment or to a cure in an adequate institution. 4 Numbers 2, 3 and 4 of the previous article are correspondently applicable. Article 53 Suspension with probation 1 The court may determine that the suspension is accompanied by probation, if deemed convenient and adequate to promote the reintegration of the convict into society. 2 The probation is based on a social reintegration plan, executed with supervision and support, during the time of the suspension, from the social reintegration services. 3 Probation is ordered whenever the convict has not yet completed, at the time of the crime, 21 years of age or when the sentence of imprisonment which execution was suspended has been applied for not more than three years. NON-OFFICIAL TRANSLATION 20

21 Article 54 Social reintegration plan 1 The social reintegration plan includes the re-socialization aims to be achieved by the convict, the activities which he shall develop, the respective stages and the support and supervision measures to be adopted by the reintegration services. 2 The social reintegration plan is communicated to the convict, being his prior consent attained, whenever possible. 3 The court may impose the duties and rules of conduct referred to in articles 51 and 52 and also further obligations which are of interest to the re-adaptation plan and to the improvement of the social responsibility feeling of the convict, namely: a) To respond to convene notices from the magistrate in charge of the execution and from the social reintegration technician; b) To receive visits by the social reintegration technician and inform him or make available to him information and documents which confirm his means of support; c) To inform the social reintegration technician as to changes of address and job as well as to any travelling for a period higher than eight days and of the foreseeable date of return; d) To attain prior authorisation from the magistrate in charge of the execution for journeys abroad. Article 55 Lack of compliance of the suspension conditions If the convict, during the suspension period, ceases with guilt from complying with any of the duties or rules of conduct to which he was subject to or does not correspond to the social reintegration plan, the court may: a) Give a solemn warning; b) Require guarantees for the compliance of the obligations which subject the suspension; c) Impose new duties or rules of conduct or introduce additional demands in the reintegration plan; d) Extend the suspension period until half of the term initially established, but not for a period less than one year or exceeding the maximum term of suspension foreseen in no. 5 of article 50. NON-OFFICIAL TRANSLATION 21

22 Article 56 Revocation of the suspension 1 The suspension of the execution of the sentence of imprisonment is revoked whenever, during its course, the convict: a) Infringes, in a gross and continuous way, the duties or rules of conduct imposed or the social reintegration plan; or b) Commits a crime for which turns out to be convicted and reveals that the purposes in which the suspension was based on could not, by means of such suspension, be accomplished. 2 The revocation determines the serving of the sentence of imprisonment determined in the judgment, without the convict having the possibility to demand the return of the contributions made. Article 57 Extinction of the sentence 1 The sentence is declared extinguished if, after the course of the suspension period, there are no reasons that lead to its revocation. 2 If, upon termination of the suspension period, a proceeding for a crime which may determine its revocation or an incident for the lack of compliance with the duties, rules of conduct or the reintegration social plan are outstanding, the sentence shall only be declared extinguished upon termination of the proceeding or incident and if there is no place for the revocation or to the extension of the suspension period. Section III Rendering of work in favour of community and admonition Article 58 Rendering of work in favour of community 1 If a sentence of imprisonment for not more than two years should be applicable to the agent, the court replaces it for rendering of work in favour of community whenever the court concludes that by this mean the punishment purposes are accomplished in an adequate and sufficient manner. 2 - Rendering of work in favour of community consists of the render of free services to the State, to other legal persons governed by public law or to private entities which purposes the court deems of interest for the community. NON-OFFICIAL TRANSLATION 22

23 3 For the purposes of no. 1, each imprisonment day established in the judgment is replaced by one hour of work, in a maximum of 480 hours. 4 The work in favour of community may be rendered on Saturdays, Sundays and public holidays as well as in the business days, but in such cases the periods of work cannot impair the normal working hours nor exceed, per day, the number of hours permitted under the regime of extraordinary hours applicable. 5 The sentence of rendering of work in favour of community may only be applicable with the convict s acceptance. 6 The court may also apply to the convict the rules of conduct set out in nos. 1 to 3 of article 52, whenever deemed adequate to promote the respective reintegration into society. Article 59 Temporary suspension, revocation, extinction and replacement 1 - Rendering of work in favour of community may be temporarily suspended by virtue of a serious medical reason, familiar, professional, social or another but the time for the execution of the sentence may not exceed 30 months. 2 The court revokes the sentence of rendering of work in favour of community and orders the serving of the sentence of imprisonment determined in the judgment if the agent, after the conviction: a) Intentionally puts himself in conditions which prevent him from working; b) Refuses, without a fair ground, to render work, or infringes in a gross manner the duties resulting from the sentence to which he was convicted for; or c) Commits a crime for which turns out to be convicted and reveals that the purposes of the sentence of rendering of work in favour of community could not, by such mean, be accomplished. 3 Article 57 is correspondently applicable. 4 If, in the cases foreseen in no. 2, the convict has to serve a sentence of imprisonment but has already rendered work in favour of community, the court deducts from the time of imprisonment to be served the days of work already rendered, in accordance with no. 3 of the previous article. 5 Should the rendering of work in favour of community be deemed as satisfactory, the court may declare the sentence not lower than 72 hours extinguished, once two thirds of the sentence are served. NON-OFFICIAL TRANSLATION 23

24 6 If the agent is not able to render the work to which he was convicted by a cause which is not imputable to him, the court, depending on which is more adequate to the accomplishment of the punishment purposes: a) Replaces the sentence of imprisonment determined in the judgment by a fine for not more than 240 days, being no. 2 of article 43 correspondently applicable; or b) Suspends the execution of the sentence of imprisonment determined in the judgment, for a period which he establishes between one to three years, subjecting it, pursuant to articles 51 and 52, to the compliance of adequate duties or rules of conduct. Article 60 Admonition 1 If a fine penalty for not more than 240 days should be applicable to the agent, the court may restrict to issue an admonition. 2 The admonition only takes place if the damage has been repaired and the court concludes that, by such mean, the punishment purposes are accomplished in an adequate and sufficient manner. 3 As a rule, the admonition is not applicable if the agent, in the three years prior to the act, has been convicted in any sentence, including admonition. 4 The admonition consists of a verbal solemn censure made to the agent, in a hearing, by the court. Section IV Parole Article 61 Requirements and length 1 The applicability of parole is always subject to the convict s consent. 2 The court releases the convict to imprisonment on parole when half of the sentence has already been served and in a minimum of six months if: a) There are grounds to expect, under the circumstances of the case, the previous life of the agent, his personality and its evolution during the execution of the sentence of imprisonment, that the convict, once in liberty, will lead his life in a socially responsible manner, without committing crimes; and b) The release reveals to be compatible with the order and social peace defence. NON-OFFICIAL TRANSLATION 24

25 3 - The court releases the convict to imprisonment on parole when two thirds of the sentence are already served and in a minimum of six months, provided that the requirement referred to in paragraph a) of the previous number reveals to have been fulfilled. 4 Without prejudice to the previous numbers, the convict to a sentence of imprisonment higher than six years is released on parole as soon as he has served five sixths of the sentence. 5 In any of the said types, the parole has a length equal to the time of imprisonment which remains to be served, until a maximum of five years, after which the surplus of the sentence is deemed to be extinguished. Article 62 Adaptation to parole For the purposes of adaptation to parole, upon verification of the requirements foreseen in the previous article, the court may anticipate the release on parole, for a maximum period of one year, being the convict obliged to, during the anticipation period, besides the compliance of the further conditions imposed, the house arrest regime, monitored by remote technical means. Article 63 Parole in case of consecutive execution of several sentences 1 In the event of execution of several sentences of imprisonment, the execution of the sentence to be served in first place is interrupted upon serving half of the sentence. 2 In the cases foreseen in the previous number, the court decides about the parole at the time in which the court may simultaneously decide in relation to the total amount of the sentences. 3 Should the sum of the sentences to be consecutively served exceed six years of imprisonment, the court, as soon as five sixths of the sum of the sentences is served, releases the convict on parole, provided that the convict has not previously benefited from it. 4 The previous numbers are not applicable to the case where the execution of the sentence results from the revocation of the parole. NON-OFFICIAL TRANSLATION 25

26 Article 64 Parole regime 1 Article 52, nos. 1 and 2 of article 53, article 54, paragraphs a) to c) of article 55, no. 1 of article 56 and article 57 are correspondently applicable to parole. 2 The revocation of the parole determines the execution of the sentence of imprisonment which has not yet been served. 3 In relation to the sentence of imprisonment to be served the grant of new parole can take place in the terms set out in article 61. CHAPTER III Accessory sentences and effects of the sentences Article 65 General principles 1 No sentence involves as a necessary effect the lost of civil, professional or political rights. 2 The law may correspond to certain crimes the prohibition of the exercise of certain rights and professions. Article 66 Prohibition of the exercise of a duty 1 The holder of a public position, public officer or agent of the administration, who, in the performance of the activity to which he was elected or appointed to, commits a crime punished by sentence of imprisonment higher than three years is also prohibited of the performance of such duties for a period ranging from two to five years when the act: a) Is committed with flagrant and serious abuse of the duty or with clear and serious breach of the inherent duties; b) Reveals indignity in the exercise of the position; or c) Implies the lost of the necessary reliance for the performance of the duty. 2 The previous number is correspondently applicable to the professions or activities which performance is subject to a public title or to an authorisation or homologation from a public authority. NON-OFFICIAL TRANSLATION 26

27 3 The time in which the agent is deprived of liberty as a result of a procedural measure of constraint, sentence or security measure is not taken into account for the prohibition term. 4 When, for the same act, a security measure of interdiction of activity is applicable in accordance with article 100, number 1 and 2 cease to be applicable. 5 Whenever the holder of a public position, public officer or agent of the administration is convicted for the commission of a crime, the court communicates the conviction to the authority which he depends on. Article 67 Suspension of the performance of a duty 1 The defendant definitely convicted to a sentence of imprisonment, who is not disciplinarily dismissed from a public duty which he performs, is suspended from the duty while serving the sentence. 2 The suspension foreseen in the previous number stands with the effects which, pursuant to the respective legislation, follow the disciplinary sanction of suspension of the performance of the duties. 3 The previous numbers are correspondently applicable to professions or activities which performance is subject to a public title or to authorisation or homologation from a public authority. Article 68 Effects of the prohibition and suspension of the performance of a duty 1 Except for a provision stating otherwise, the prohibition and suspension of the performance of a public duty imply the lost of the rights and privileges granted to the holder, officer or agent, for the corresponding time. 2 - The prohibition of the exercise of a public duty does not impair the holder, officer or agent to be appointed to a position or duty which can be performed without the dignity conditions that the position or the duty which performance was forbidden require. 3 The previous numbers are correspondently applicable to professions or activities which exercise is subject to a public title or to authorisation or homologation from a public authority. NON-OFFICIAL TRANSLATION 27

28 Article 69 Prohibition to drive motor vehicles 1 A person is convicted in the prohibition to drive motor vehicles for a period determined between three months and three years, if punished: a) For the crime foreseen in articles 291 or 292; b) For a crime committed with the use of a vehicle, the execution of which has been, in a relevant way, made easier by such person; or c) For a crime of disobedience committed by means of refusal to be submitted to evidences legally established for detection of driving under the effect of alcohol, narcotics, psychotropic substance or other products with similar effect. 2 The prohibition produces effects from the time in which the decision has become final and may comprise the driving of any class of motor vehicles. 3 Within a term of ten days from the time in which the judgement has become final, the convict delivers at the courts registry or in any police post, which sends to the said registry, the driving title, if the same has not already been seized in the proceeding. 4 The court's registry communicates the prohibition to drive to the Directorate- General for Traffic within a term of 20 days from the date in which the judgment has become final as well as reports to the Public Prosecution the default events to the previous number. 5 In the event of a driving title issued in a foreign country with international value, the seizure may be replaced by a note in such title, by the Directorate-General for Traffic, of the prohibition declared. If the note is not possible, the registry, through the Directorate-General for Traffic, communicates the decision to the competent body of the country in which it has been issued. 6 - The time in which the agent is deprived of liberty as a result of a procedural measure of constraint, sentence or security measure is not taken into account in the prohibition term. 7 When, for the same act, the withdrawal or interdiction to grant the driving title is applicable in accordance with articles 101 and 102, number 1 ceases to be applicable. CHAPTER IV Choice and extent of the sentence SECTION I General rules NON-OFFICIAL TRANSLATION 28